Rosenberger v. City of Casper Bd. of Adjustment

• Decision Date: 12 December 1988
• Docket Number: No. 88-138,88-138
• Citation: 765 P.2d 367
• Parties: John ROSENBERGER, Julia Rosenberger, Irvin Duane Timberman, Patricia Timberman and Lucille Read, Appellants (Petitioners), v. CITY OF CASPER BOARD OF ADJUSTMENT, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 367

765 P.2d 367

John ROSENBERGER, Julia Rosenberger, Irvin Duane Timberman, Patricia Timberman and Lucille Read, Appellants (Petitioners), v. CITY OF CASPER BOARD OF ADJUSTMENT, Appellee (Respondent).

No. 88-138.

Supreme Court of Wyoming.

Dec. 12, 1988.

Ronald A. Kastanek, Casper, for appellants.

David B. Park, Casper, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Appellants John Rosenberger, Julia Rosenberger, Irvin Timberman, Patricia Timberman, and Lucille Read (Rosenbergers) challenge the district court's dismissal of their appeal from appellee City of Casper Zoning Board of Adjustment's (Board) denial of their petition for rehearing.

We affirm.

In their petition for rehearing, Rosenbergers challenged the Board's August 6, 1987, final decision granting a Conditional Use Permit to a nonprofit shelter for homeless persons. The Board is said to have mailed written notice of its decision to grant the permit on October 8, 1987. On August 13, 1987, Lucille Read and Duane Timberman filed a notice of appeal in the district court from the Board's decision to grant the permit. That notice of appeal was dismissed on November 9, 1987, for failure to comply with the Wyoming Rules of Appellate Procedure.

Rosenbergers filed their petition for rehearing with the Board on November 13, 1987. The Board held a rehearing on December 3, 1987, during which it denied the petition for rehearing. Rosenbergers appealed from the denial of their petition for rehearing in a notice of appeal filed on January 11, 1988. The district court dismissed that notice of appeal on April 25, 1988, after determining that it lacked jurisdiction to review the Board's denial of the petition for rehearing because the Board lacked authority to rehear its original decision to grant the Conditional Use Permit. From this determination the district court reasoned that Rosenbergers' notice of appeal was not taken from an appealable final order and the notice of appeal was not timely filed as to the original Board decision granting the permit. Rosenbergers challenge those conclusions, arguing that: (1) the Board's order denying rehearing was an appealable final order over which the district court had jurisdiction; and (2) their appeal was timely as to the original Board decision granting the permit, because under W.R.A.P. 12.04, ¹ the petition for rehearing tolled the time during which the notice of appeal from the Board's decision to grant the permit had to be filed.

The district court dismissed Rosenbergers' notice of appeal from the Board's decision denying rehearing, basing its dismissal on this court's opinion in Hupp v. Employment Security Commission of Wyoming, 715 P.2d 223 (Wyo.1986). In Hupp, this court unanimously reversed a Wyoming Employment Security Commission (WESC) decision on rehearing that overturned a final WESC ruling. Although the members of the court at that time unanimously agreed on that result, i.e., WESC had not adopted a rule to rehear its own final decisions, they held divergent views about the source of power from which such a rehearing rule might be created.

In what is labeled as the majority opinion, Justice Cardine, joined by Justice Rooney, held that WESC did not have a rule allowing it to rehear its own final decision because the power to adopt such a rule was not expressly granted to the agency by the legislature. Id. at 225 (citing Tri-County Electric Association, Inc. v. City of Gillette, 525 P.2d 3, 8-9 (Wyo.1974)). A specially concurring opinion, authored by Justice Urbigkit, joined by Chief Justice Thomas, and adopted by Justice Brown in his own specially concurring opinion, advocated a different approach. It argued that an agency, with the general powers to adopt rules of procedure when granted by the legislature, may reconsider a decision if the agency has adopted rehearing rules pursuant to the Wyoming Administrative Procedure Act (WAPA). Hupp, 715 P.2d at 228-232. The special concurrence cited W.S. 16-3-102(a)(i) (October 1982 Repl.) as authority for this position. 715 P.2d at 228. (Urbigkit, J., specially concurring, joined by Thomas, C.J. See also Id. at 227 (Brown, J., specially concurring).

This case is not one in which an agency has adopted a rehearing rule without express legislative authority to do so, thereby requiring us to choose one of the two positions advocated in Hupp to render a binding opinion. In fact, embracing either of those positions in this case would risk issuing an advisory opinion. The statutes allowing the City of Casper to appoint the Board do not give the Board the express power to rehear its final decisions. See W.S. 15-1-605 through 15-1-609 (July 1980 Repl.). Further, the Board's own rules and regulations, which appear to have been adopted pursuant to the WAPA, do not set forth a specific procedure for rehearing final Board decisions concerning Conditional Use Permits. No statutory or regulatory authority, under any rationale, exists for the Board to rehear its final decision on a Conditional Use Permit.

The Board's order denying Rosenbergers' petition for rehearing is not an appealable final order since the Board lacked authority to rehear its original decision granting the permit. Rosenbergers' filing of their petition for rehearing did not toll the running of the time period for filing a notice of appeal of final agency action under W.R.A.P. 12.04.

AFFIRMED.

URBIGKIT, Justice, dissenting.

I dissent because neither this record nor the law supports the premise of the majority decision that the City of Casper Board of Adjustment (Board) could not grant a rehearing which would toll the time for the Rosenbergers to appeal. Additionally, the time limitation for administrative agency appeal properly commences upon denial of rehearing or a decision on rehearing as expressly stated by W.R.A.P. 12.04 as constituting the second error in majority decision.

Specifically, I would hold as documented in the record that the Board had the authority and had adopted rehearing rules. Further, the case of Hupp v. Employment Sec. Com'n of Wyoming, 715 P.2d 223 (Wyo.1986) is neither advisory nor nearly as narrow as the majority concludes.

The gravamen of the majority is based on the supposition that the statutes do not grant express authority to rehear nor did the Board adopt any rules or regulations concerning a rehearing of conditional use permits. While the statutes do not explicitly provide for rehearing, the majority's view of the Board's rules is too restrictive and incorrect. In Chapter III entitled "Variances and Appeals," the post hearing requirements are set out in Sections 3 and 4 and provide:

b. Unless otherwise stated in the Board's minutes, all variance permits shall be valid for a period of six months. The case can then be reconsidered in its entirety, on petition or on the Board's own motion, and the previous decision left unchanged or modified as the Board sees fit.

c. All appeals from the decisions of the Board shall be in accordance with the Wyoming Administrative Procedure Act, Section 9-276.19--9-276.33, Wyoming Statutes of 1957, Compiled 1969.

Section 4. Non-conforming Uses. Variances considered under the non-conforming provisions of the Zoning Code shall follow the procedure outlined above. [Emphasis in original.]

The majority juggles semantics to find that a conditional use is not a variance because referenced in another rule to further the thesis that the Board has not adopted rehearing rules in this specific respect. However, Section 4 is explicit that the Section 3 procedure is applicable for non-conforming uses. While Section 40-28 of the Board's rules entitled "Procedure for Variances, Exceptions, Conditional Uses, and Home Occupation Complaints" is applicable, it does not answer the rehearing question; that section speaks only to the form of such petitions and does not vary nor contradict the general appeals provisions of Sections 3 and 4 of the rules. Moreover, the Board recognized the need for rehearing flexibility as evidenced in Section 2 of its rules which expressly allows reconsideration of decisions which are only taken under advisement. ¹

Clearly, the majority does not accept the inherent-authority rule, but melds the other two approaches together--the statutory requirement standard and the general power provisions--to derive a new compilation. While certainly unique, such a compromising perspective ignores the very issue before the court. I will not redebate the merit, desirability, or wisdom of the general power provisions approach as explained in my special concurrence in Hupp which did carry three judges' approval, except to point out that neither the Board nor the majority have referenced a single case even suggesting that law has changed in the two years since Hupp was published nor that the general law is different. See I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 107 S.Ct. 2360, 96 L.Ed.2d 222, cert. denied 482 U.S. 927, 107 S.Ct. 3209, 96 L.Ed.2d 696 (1987) and West Penn Power v. EPA, 860 F.2d 581 (3rd Cir.1988).

The Supreme Court of Mississippi in Delta Drilling Co. v. Cannette, 489 So.2d 1378 (Miss.1986), when faced with this issue in relation to whether a worker's compensation case should be reopened, stated many of the reasons for the general power approach.

We emphasize that the Commission is an administrative agency, not a court. It has broad discretionary authority to establish procedures for the administration of compensation claims. It has like authority to relax and import flexibility to those procedures where in its judgment such is necessary to implement and effect its charge under the Mississippi Workers' Compensation Act. It is a rare day when we will reverse the Commission for an action taken in the implementation and enforcement of its own procedural rules. Today is not such a day.

Id. at 1380-81. See also Moschetti v. Board of Zoning...